¶1
After pleading guilty to one count of securities fraud and
one count of sale of an unregistered security, Sherrell
Berrett seeks to withdraw his guilty plea, contending that
his counsel provided him with constitutionally ineffective
assistance. As a condition of Berrett's plea agreement,
the State agreed to recommend that he be placed on probation
if he paid a significant portion of the restitution by the
time of sentencing. Berrett also waived his right to be
sentenced within forty-five days[1] and was given six months to
make payments toward restitution. Berrett had not made the
payments by the sentencing date. Because he failed to pay the
court-ordered restitution, the State did not recommend
probation, and the court sentenced him to prison. Almost one
year after he was sentenced, Berrett filed a petition under
the Post-Conviction Remedies Act (the PCRA), asserting that
he had received ineffective assistance of counsel. The State
filed a motion for summary judgment contending that (1)
Berrett's petition was procedurally barred because he did
not first move to withdraw his guilty plea, and (2) even if
the claim was not procedurally barred, he did not demonstrate
that he was entitled to post-conviction relief. In
opposition, Berrett disputed the State's assertions that
his petition was procedurally barred and requested the court
conduct an evidentiary hearing on his claim of ineffective
assistance of counsel. The district court determined that
Berrett's petition was procedurally barred under the PCRA
and granted the State's motion for summary judgment; the
court did not address the merits of Berrett's ineffective
assistance of counsel claim. Berrett appeals the court's
decision.

¶2
We disagree that Berrett's ineffective assistance of
counsel claim was procedurally barred, but we affirm the
district court's ruling on the alternative ground that
Berrett failed to show that his counsel's allegedly
deficient performance prejudiced his defense.

BACKGROUND

¶3
In mid-2013, the State charged Berrett, then a
seventy-five-year-old man, with six counts of securities
fraud (second degree felonies); four counts of theft (second
degree felonies); one count of sale of an unregistered
security (a third degree felony); one count of unlicensed
investment advisor activity (a third degree felony); and one
count of pattern of unlawful activity (a second degree
felony).[2]

¶4
Berrett's neighbor (Defense Counsel) was an attorney who
assisted Berrett in his interactions with the Utah Division
of Securities during its investigation of Berrett. Two days
after the criminal charges were filed against Berrett,
Defense Counsel entered an appearance to represent him in
this case.

¶5
Six weeks after the State filed charges, Defense Counsel and
the State reached a resolution. If Berrett pleaded guilty to
one count of securities fraud and one count of sale of an
unregistered security, and agreed to pay $1, 308, 364.73 in
complete restitution to the victims, with $600, 000 as court-
ordered restitution, [3] the State would dismiss the remaining
charges. The State also agreed that if Berrett paid $400, 000
toward restitution by the time of sentencing, it would
recommend that he be placed on probation for sixty
months;[4]but if not, the State would ask the
district court to sentence him on the felony charges entered,
and would reserve the right to seek either a concurrent or
consecutive prison sentence. Based on that agreement, Berrett
pleaded guilty in December 2013.

¶6
At the change-of-plea hearing, Defense Counsel requested that
sentencing be extended six months to allow time for a
presentence investigation report (the PSI report) to be
prepared and to give Berrett an opportunity to start paying
restitution before sentencing in accordance with the terms of
the plea agreement. Defense Counsel further explained that
Berrett was going to review his records and determine whether
he had already paid some restitution, and if so, the
prosecutor would give him credit for those payments. After
these explanations, Defense Counsel presented the district
court with a plea statement, with a three-page plea agreement
attached, each of which Berrett, Defense Counsel, and the
prosecutor signed.

¶7
The plea statement included: (1) a description of the
charges, supporting facts, and the minimum and maximum
punishment for each charge to which Berrett would be pleading
guilty; (2) an assertion that Berrett had read the statement
and understood the nature and elements of the charges and
discussed them with Defense Counsel; (3) a statement that
Berrett would waive certain constitutional rights by pleading
guilty;[5] (4) an acknowledgement that he could be
subject to the maximum sentence that may be imposed for each
crime to which he was pleading guilty; (5) a disclaimer that
the court would not be bound by any sentencing recommendation
from Defense Counsel or the prosecutor; (6) a certification
that Berrett had read, understood, and voluntarily signed the
plea statement and plea agreement, and that no one made other
promises outside of the plea agreement to him; (7) an
acknowledgement that if he wanted to withdraw his guilty
plea, he would have to file a motion before sentencing; (8)
an affirmation that he was "satisfied with the advice
and assistance of [his] attorney"; and (9) an
acknowledgment that any challenge to his guilty plea after
sentencing must be made under the PCRA.

¶8
The plea agreement detailed: (1) the charges to which Berrett
would plead guilty; (2) the amount of complete and
court-ordered restitution; (3) a stipulation postponing
sentencing for six months to allow Berrett time to collect
and make payments toward the court-ordered restitution; (4)
an agreement that if Berrett "[paid] $400, 000 toward
his court-ordered restitution . . . on or before sentencing,
the State [would] recommend that [he] be placed on probation
for a period of sixty (60) months"; and (5) a statement
on the third page, directly above Berrett's signature,
that if Berrett was "unable to pay the $400, 000 toward
the 'court-ordered' restitution at the time of
sentencing, the State [would] ask the Court to sentence
[Berrett] on the felony charges as entered, and [it] may seek
a concurrent or consecutive prison sentence."

¶9
Before the district court accepted Berrett's guilty plea,
it engaged in a colloquy with him about the plea statement
and plea agreement he had signed. The court specifically
asked whether he was prepared to plead as indicated; whether
he was doing so freely and voluntarily; whether he read and
understood the plea statement; whether his questions had been
answered; and whether what Defense Counsel put on the record
was consistent with his understanding. Berrett gave an
unequivocal affirmative reply to each of these questions. The
court found the factual recitation sufficient and accepted
Berrett's guilty plea.

¶10
During the six months following the change-of-plea hearing,
Berrett did not move to withdraw his guilty plea, nor did he
make any payments toward restitution. Adult Probation and
Parole prepared and submitted a PSI report to the court for
the sentencing hearing.

¶11
The PSI report included, among other things, a sentencing
recommendation to the district court; sentencing guidelines
based on Berrett's lack of criminal history and the
category of the offenses to which he pleaded guilty; and the
investigator's recommendation. The recommendation in the
report adopted the terms of the plea agreement entered
between Berrett and the State, and it included some
additional terms and conditions. Given Berrett's lack of
criminal history and the category of his crimes, the
guidelines suggested he serve 180 days in the county jail
(ninety days for each offense) and then be placed on
probation. Finally, the investigator commented that
"Berrett reported he has tried, without success, to
raise $400, 000 to pay toward restitution as he had
hoped."

¶12
At the sentencing hearing, [6] Berrett told the court that he
had tried to make restitution payments but was unable to do
so. Defense Counsel explained that he and Berrett had spent
many hours attempting to provide an evidentiary foundation
for cases pending against people Berrett had entrusted with
his investors' funds in an attempt to recoup the lost
money. Defense Counsel argued Berrett should not be sent to
prison. Consistent with the plea agreement, the State
recommended that the court sentence Berrett to prison because
he had not made any payments toward restitution. The district
court sentenced Berrett to one-to-fifteen years in prison for
securities fraud and zero-to-five years in prison for the
sale of an unregistered security, and it ordered the
sentences to run concurrently.

¶13
Berrett filed his PCRA petition in the district court in July
2015. He contended that Defense Counsel provided ineffective
assistance that resulted in the entry of a guilty plea that
was not knowing and voluntary. Berrett first argued that
Defense Counsel was ineffective for not subjecting the
State's case to meaningful adversarial testing. Second,
Berrett argued that Defense Counsel did not investigate the
case or interview witnesses. Third, Berrett argued that
Defense Counsel misrepresented to him that he would be
...

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